March 2003

Unacceptable workplace behaviour ? Discipline or dismissal?

When to discipline, when to dismiss?

Insulting and colourful language or aggressive conduct should not be accepted at any workplace. Even the best policies cannot hope to deal with all types of behaviour and some circumstances are so unusual as to have no precedent. Rather than turn to a manual, the HR manager will often have to consider stepping back from routine procedure and instead make a "gut reaction" decision. An examination of some of the unusual contested cases in 2002 demonstrates how it can be hard to get it right simply by following the book.

Calling a co-worker "boy"

In a discrimination claim, the NSW Administrative Decisions Tribunal found a department store had discriminated against an African American employee on the grounds of race when a co-worker said: "You'd better get your act together boy".

The tribunal was of the view that "boy" took on a race based meaning when said to an African American given the history of enslavement. The co-worker had not been dismissed but the decision suggests dismissal was warranted in the absence of any special circumstances.

Abusing a co-worker after hours

Late one evening on a company retreat a drunken worker, in front of colleagues, banged a co-worker's door and shouted, "Fuck the bitch, fucking slut". He was dismissed.

The AIRC found these comments by a male worker while banging on the door of a female colleague's hotel room to be "totally unsatisfactory", even though he mistakenly, did not think she was in the room. But the Commissioner took the view that the comments did not justify the employee's termination. If the male worker's actions were grounds for dismissal, then:

"....no employee would be able to talk to their colleagues or friends in an open manner to express a view that some people might be offended for fear of retribution by way of termination...."

On Appeal, the Full Bench of the Commission reversed the decision finding that the words amounted to sexual harassment and verbal intimidation, and an apology the next day was too late. Summary dismissal was warranted.

Off duty behaviour

Another case concerning out of hours behaviour involved an off duty policeman being dismissed after being found by a hotel manager engaging in oral sex with a woman in an isolated area of the pub.

The Commissioner of Police decided that such behaviour brought the officer into disrepute in the small town where he was the only police officer and the Commissioner dismissed him.

On appeal the Tasmanian IRC found the behaviour demanded severe disciplinary action but not dismissal.

Using the term "scab"

"Scab" is a term commonly used by union members to describe employees who do not take part in a strike or industrial campaign.

The AIRC and the Western Australian Industrial Relations Commission have both commented that the word "scab" is clearly an insult and its use should not be encouraged.

However the use of that word in the workplace did not necessarily justify the dismissal of employees. The AIRC and WAIRC were both of the view that the use of the word "scab" itself without more allowed an employer to counsel, warn or even suspend an employee, but not to terminate.

Swearing by the boss

In one matter, the AIRC was asked to consider whether the words of the employer, said at the end of a performance interview, "fuck off, go now before I do something stupid", terminated an employee's employment.

The Commission said:

"....whether the words be taken as a harsh expression of abuse or of dismissal it is entirely inappropriate for an employer to speak to an employee in such terms..."

The Commission formed the view in the context of this case, that the words did not terminate the employee's employment and so there was no dismissal against which the employee could appeal. Had the case occurred in NSW there might have been the prospect of an unfair contract claim.

Fouling workplace equipment

The Tasmanian Industrial Commission found that the dismissal of an employee for smearing human faeces on the steering wheel of a truck, urinating in drink containers and on co-workers, was unfair because the process followed was flawed entirely, but awarded compensation rather than reinstatement. Although the behaviour was extreme it was not unusual in a workplace with a history of "practical jokes".

The context makes a difference

The words "fucking dogs" were repeatedly uttered by a prison guard to inmates in a high security prison. The abusive language led to a confrontation between the guard and an inmate and as a consequence the guard was dismissed. The Queensland Commission said:

"....prisons are robust places and the language used by officers and inmates alike can be robust ....[but the employee's actions] placed ....[the prison]...on the brink of major upset.."

The Queensland Commission found that the dismissal was warranted as the actions of the guard were such as to put himself and other employees at risk. Not so much a case about the words but rather the context and impact of their use.

Speak English Please

Asking employees to speak English might seem discriminatory. However, the West Australian Equal Opportunity Tribunal found it was not discriminatory of a manager to ask two co-workers not to speak Thai but to speak English in front of another employee.

There had been several complaints and the Tribunal found there was an intention to exclude and perhaps criticise the non Thai speaker.

Asking the employees to speak English was not the best way to solve the problem but it was not done to treat the Thai speakers less favourably, so there was no discrimination.

Summary

Insulting and abusive language or aggressive or unthinking conduct at a workplace ought not be accepted. In most circumstances, the decisions suggest that the correct approach to take is to warn and counsel the employee. But where the behaviour is discriminatory or threatening an employer may have to take stronger action, including dismissal.

There is no easy answer in deciding when to dismiss an employee for inappropriate language or conduct. The cases can turn on minor variations of facts not always apparent when making the decision. Even the tribunals can come to different decisions on appeal.

Often what is important is not to pay too much attention to possible decisions by a tribunal, but instead to take a position that supports the standards of behaviour required in your workplace. Aim to be fair but don't shy away from making the decision that seems "right".

Bartier Perry

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